Judge rules landlords can evict pot dispensaries

Collective's attorneys plan to appeal decision

San Diego building owners that lease to medical marijuana dispensaries may evict the tenants because collectives are illegal under the city’s zoning laws, a judge has ruled.

In a decision released this week, San Diego County Superior Court Judge Ronald Prager wrote that Kimber Investment Group has the right to remove Medibloom collective from its building on Avena Place in Rancho Bernardo.

A representative for the collective said it planned to appeal the decision.

“Cities have great power in determining — They are the arbiter of zoning laws,” Prager wrote in the decision Nov. 1. “There’s no place in the City of San Diego, including the shopping center in Rancho Bernardo here, where a medical marijuana dispensary is a permissible use. It is therefore illegal.”

Prager also noted neighborhood complaints about increased crime since the dispensary opened.

The ruling follows his decision last month that the city can restrict the location of medical marijuana dispensaries based on its zoning laws. Prager wrote that state law regarding marijuana addresses the cultivation and possession for medicinal purposes, but not zoning and business licensing.

Attorneys for several collectives have argued that the city could not legally prohibit them under state law. They also said their clients’ collectives could fit within zones relating to pharmacies, medical offices, commercial and wholesale distribution centers and possibly agriculture.

“While I haven’t seen the city’s press release, my client is currently preparing for an appeal of the judge’s ruling and we will be requesting a stay on enforcement from the court of appeal,” said Lance Rogers, the attorney for Medibloom.

“Medibloom intends to comply with all effective court orders. However, my client maintains it was in substantial compliance with the San Diego Municipal Code and full compliance with the laws of the state of California.”

San Diego City Attorney Jan Goldsmith has been closely monitoring marijuana distributors and plotting a legal strategy to rein them in. The city’s medical marijuana collectives have been in a legal netherworld since officials two years ago determined that they didn’t fit within any of the existing zones and therefore would not be issued business licenses.

An ordinance outlining where the dispensaries were allowed was approved by the City Council in April, but that was repealed in July after a successful referendum signature drive.

In 2011, the City Attorney’s Office has filed lawsuits against 88 dispensaries with stipulated agreements, temporary restraining orders or injunctions in place to close 48 and the balance pending future hearings, Goldsmith’s spokesman Jonathan Heller said.

Last month, Kimber Investment Group agreed not to provide space to medical marijuana dispensaries as part of a deal with the City Attorney’s Office. The investment group then sued the nonprofit collective to break the lease and evict Medibloom.

“The courts have demonstrated that stipulated agreements and unlawful retainers are powerful tools in removing illegal marijuana dispensaries,” Goldsmith said in a prepared statement.

He added that the landlords were warned by U.S. Attorney Laura Duffy to remove the dispensaries or risk forfeiting their property. Marijuana remains illegal under federal law, despite Californians voting in 1996 to allow patients with a doctor’s approval to use and receive it from caregivers.

Secretary of State Debra Bowen on Tuesday announced that proponents of an initiative to reduce marijuana-related penalties may begin collecting the 504,760 signatures needed to qualify the measure. The initiative also would make property forfeiture laws inapplicable to marijuana offenses involving two ounces or less.

The increased city enforcement comes amid a federal crackdown on profit-generating marijuana producers and distributors — a position that has drawn opposition from lawmakers and numerous challenges in the courts.

“Those who dispute enforcement of the law have every right to focus on changing the law,” Goldsmith added.